Monday, August 12, 2013

The court should not lightly interfere with a testator’s choice of the person to act as estate trustee

Chambers Estate v. Chambers, 2013 ONCA 511:

[95]       The applications judge was fully alive to the legal principle that the court should not lightly interfere with a testator's choice of the person to act as his or her estate trustee: Re Weil, [1961] O.R. 888 (C.A.), at p. 889.  Just as a court should remove an estate trustee only on the "clearest of evidence", so too they should be reluctant to pass over a named executor unless "there is no other course to follow":Windsor, at para. 41, citing Crawford v. Jardine (1997), 20 E.T.R. (2d) 182 (Ont. C.J. (Gen. Div.)), at para. 18.  As Wright L.J. explained, "passing over of an executor and granting administration to other parties is an unusual and extreme course, though it is within the discretion of the Probate Court": Re Leguia (No. 2)(1936), 155 L.T.R. 270 (C.A.), at p. 276.  

[96]       Thus, the wishes of the testator will generally be honoured, "even if the person chosen is of bad character": Carmichael Estate (Re) (2000), 46 O.R. (3d) 630 (S.C.), at para. 17.  In fact, an executor named in a will should not be passed over simply because he or she is of bad character or bankrupt, or there is likely to be friction between co-executors: see Harris v. Gallimore (1925), 57 O.L.R. 673 (C.A.), at p. 678; Re Agnew, [1941] 4 D.L.R. 653 (Sask. C.A.), at p. 657; Re Wolfe(1957), 7 D.L.R. (2d) 215 (B.C.C.A.), at p. 221; and Crompton v. Williams, [1938] O.R. 543 (H.C.), at pp. 586-87.  That being said, courts have passed over an executor because he was in a conflict of interest with the estate (e.g. Re Becker(1986), 57 O.R. (2d) 495 (Surr. Ct.), at pp. 498-99; Thomasson Estate (Re), 2011 BCSC 481, [2011] B.C.W.L.D. 4763, at paras. 29-30) or because she had a conflict and was in poor health (e.g. Re Bowerman (1978), 20 O.R. (2d) 374 (Surr. Ct.), at p. 377).

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